An Act for Encouraging the Art of Making New Models and Casts of Busts, and other things therein mentioned, 1798, 38 Geo.III, c.71 (1798)

2. Abstract

The first occasion on which British copyright law provided protection for a medium other than print. The legislation conferred exclusive rights lasting 14 years on persons who created new models or casts of human or animal figures.

The commentary describes the background to the Act, in particular the lobbying efforts of the artist and sculptor George Garrard, as well as the subsequent case-law, highlighting flaws in the drafting that lead to a further act in 1814. The commentary argues that while the 1798 Act is pre-modern, in the sense of having a reactive and subject-specific remit, by severing copyright from its print basis, the Act paved the way for the emergence of the modern image of copyright as concerned with the promotion of ‘art and literature'.

3. The founding of the Royal Academy

When William Hogarth (1697-1764) and a small group of other contemporary artists petitioned Parliament for statutory protection for engraved works in February 1735 they set out their case in a lengthy Letter to a Member of Parliament.[1] Among their various justifications they provided for the introduction of such protection, they argued that: "[W]hen every one is secure of the Fruits of his own Labour, the Number of Artists will be every Day increasing. Not only the indigent and laborious, but the sprightly and inventive Genius will be permitted to enter the Profession". As the number of professionals engaged in the business of engraving and design increased, so too would the general quality of national "designing" improve, and given that:

"Designing is the Foundation of Painting, Sculpture, Architecture, &c. and in proportion as Designing is encouraged, and improved, these must of consequence improve with it: And all the Train of inferior Arts, which depend upon Designing; all the Ornaments of Building, Gardens, nay of Furniture, Dress and Equipage, where the Justness of the Outline, and the Fancy of the Pattern, give the Neatness and Elegance to the Work, will daily receive their share of Improvement."[2]

What was being proffered was no less than a transformation of the nation's cultural and artistic canvas, and, whatever the boldness of the engravers' claim in this regard, there is certainly truth in the observation that Britain at this time, by comparison with many of its continental counterparts, was in need of an investment in the fine arts. Indeed, Hogarth himself, in the winter of 1734-35, established an academy of drawing and painting in Peter Court, St Martin's Lane to pursue the same end.[3] However, as successful as Hogarth's academy was,[4] it was not until the establishment of the Royal Academy, over thirty years later, that Britain's cultural renaissance would properly begin to flourish.

When the Royal Academy was first established in December 1768, its Instrument of Foundation, approved of and signed by George III (1738-1820), set out in the first paragraph that:

"The said Society shall consist of forty Members only, who shall be called Academicians of the Royal Academy; they shall all of them be artists by profession at the time of their admission, that is to say, Painters, Sculptors, or Architects, men of fair moral characters, of high reputation in their several professions; at least five-and-twenty years of age; resident in Great Britain; and not members of any other society of artists established in London."[5]

In the words of Joshua Reynolds (1723-1792), the Academy's first President, its remit was to provide a place within which "the Polite Arts may be regularly cultivated",[6] something akin to the various academies which had first appeared on the continent more than two hundred years previously when Cosimo de Medici (1519-1574) founded the Accademia del Disegno in Florence in 1563.[7] The Academy would provide advice and instruction for students interested in developing their abilities in the "polite arts", establish a library of books "of Architecture, Sculpture, Painting, and all the Sciences relating thereto" to facilitate the same, and organise an annual exhibition of "Paintings, Sculptures, and Designs, which shall be open to all Artists of distinguished merit", the profits from which were to be applied for the support of "indignant artists, or their families" as well as in support of the Institution itself.[8] In a return to the engravers' petition of 1735, an argument central to their thesis was that statutory proprietary protection encourages greater involvement in, improvement and dissemination of the arts: "The securing to every one the Fruits of his own Labour, is the greatest and noblest Encouragement, that any Art can possibly receive, because it is the most Natural, Equal, and Extensive".[9] The argument, whether convincing or not, appears to have had some considerable influence in securing the engravers their act.[10] But, that being the case, it is curious that the three central pillars of the ‘polite arts' with which the Royal Academy was concerned would first receive statutory protection in three different centuries: sculpture in 1798;[11] painting in 1862;[12] and architecture in 1911.[13]

4. Reproductions and the Eighteenth Century Art Market

Turner, writing in 1849 about the history of copyright protection in artistic works and designs, noted that when the emergence of "new mechanic or chemic arts of engraving or etching" in the 1730s facilitated the easy reproduction of engravings for the new market of the "middle classes", then did piracy become profitable and so problematic.[14] By the same token he argued, when viable markets emerge, and "whenever piracy is advantageous, there copyright ought to step forward".[15] In relation to the ‘fine arts' it seems clear that there was a market in the late eighteenth and early nineteenth century for reproductions of both statuary and paintings. As regards the first, Hogarth wrote that:

"The fact is, that every thing necessary for the student, in sculpture or painting may at this time be procured in London. Of the Venus and the Gladiator we have small casts; and even the Torso by which Michael Angelo asserted he learned all he knew of the art has been copied in a reduced size: and the case, by which the principal may be clearly seen, is sold for a few shillings."[16]

His observations also remind us that sculpture in mid- to late eighteenth century England has to be understood in the context of the Grand Tour. As Langford notes, Italy, "neither a nation state, nor a political rival", became "the obvious destination of those Grand Tourists who could afford the time and money to go beyond Paris". As such, it also became "overwhelmingly the favourite market-place for works of art and ‘antiquities'",[17] as a result of which a thriving market for reproductions emerged.[18] As Sicca and Yarrington comment, "[c]opies after the most famous statues appear to have driven the market, following a tradition established in the seventeenth century and which had found in Florence its centre of excellence".[19] Indeed, this demand for copies in itself gave rise to the development of new techniques in reproduction.[20]

As regards reproductions of paintings, these generally came in one of two forms: painted replicas or engravings. In relation to the former, the painter himself would often produce multiple versions of a painting (often in smaller scale) depending on the success of, and demand for, the same. Wendorf, for example, relates a tale about Joshua Reynolds, the first president of the Royal Academy, reproducing a painting (Venus) for his patron the Duke of Rutland (1754-1787), a similar version of which he had previously sold to the Duke of Dorset (1711-1769).[21] Similarly, Benjamin West (1738-1820) often produced replicas. When he exhibited The Death of General Wolfe at the Royal Academy exhibition in 1771 the painting proved to be an instant sensation.[22] Lord Grosvenor (1731-1802) purchased the work for £400, after which West made at least five repetitions, one of which he sold to the German Prince of Waldeck for £250, while another was acquired by George III for £350.[23] When the Royal Academy drafted the rules regarding its first exhibition in 1769, it was clearly alive to the presence of these replicas within the market:

"Every Performance once deliver'd, and Admitted in the Royal Exhibition, and printed in the Catalogue shall not be taken away on any pretence, before the Exhibition for that Year ends.

No Picture copied from a Picture or Print, a Drawing from a Drawing; a Medal from a Medal; a Chasing from a Chasing; a Model from a Model, or any other species of Sculpture, or any Copy be admitted in the Exhibition."[24]

When the Academy subsequently advertised for exhibitors, they made sure to stress the same: "N.B.- No Copies".[25]

More often than not, however, reproductions of paintings were made by way of engraving. The money that West received, for example, for replica paintings was nothing by comparison with that which he received from the reproduction of his works as engravings. The production of the engraved version of Wolfe, for example, was negotiated and managed by John Boydell (1720-1804) who, by the end of the eighteenth century, had established himself as one of the leading figures in both the British and the European print market.[26] Boydell commissioned William Woollett (1735-1785) to engrave the work and, when first published in 1777, "it broke all records in sales and was copied by the best engravers in Paris and Vienna".[27] Woollett earned £7,000 from the Wolfe engraving, whereas Boydell is said to have realised over £15,000,[28] which figure apparently accounted for only a one third share of the profits;[29] West himself received a sum in royalties the amount of which, as Alberts notes, "has never been revealed".[30] Although West was the most commercially successful artist of his generation, it is clear that artists in general could, in the mid- to late eighteenth century, use their "engraving rights" to establish reputation and develop a wider audience,[31] while at the same time earning considerable sums of money.[32] Given the copyright protection that existed in relation to engraved works,[33] and the existence of collaborative relationships between artists and engravers in the commercial exploitation of popular paintings and drawings,[34] this may well explain why painters, such as West, felt no real need for a bespoke legal protection for their craft (during the eighteenth and early nineteenth centuries at least). Nevertheless, there is something intriguing about the fact that a domestic market clearly existed for engraved reproductions of contemporary paintings and drawings, whereas the primary market for multiples in statuary tended to draw upon neo-classical works of Italian antiquity, and yet it was the latter that should first attract copyright protection. How and why then did works of sculpture come to be protected in 1798?

5. George Garrard and Models of Cattle

What little is known about the origins of the 1798 legislation derives chiefly from the documents deposited with the Royal Academy by the minor sculptor George Garrard (1760-1826), and reproduced by him in his book of 1799.[35] Garrard, who was at that time well-known for his small scale reproductions of animals, and in particular cattle,[36] undoubtedly provided the driving force in securing the 1798 Act. He explained the impetus behind his lobbying for the Act in the following way:

"Early in the Year 1795, it occured to me, the Models of Cattle might be useful to the Studies of the Lanscape-Painter; and having executed those of a Bull, and a Cow, they were sent to your Exhibition of that Year: when I had the Satisfaction to find that my Labours were approved of, and that several of the Academicians, and some People of acknowledged Taste in the Fine Arts, expressed a Wish to have Casts from them. It happened about this Time, that a beautiful Model of a Horse then lately published, was pirated; and base, and imperfect Copies of it were sold by some Figure-Makers, to the great Loss and Disappointment of the Proprietor. As the same evil Consequence might attend any other Publication of Models, it was proposed to some of the principal Statuaries, to petition Parliament for Leave to bring in a Bill to secure the Copy-Right of Models..."[37]

Deuchar writes about Garrard as follows: "Garrard's most adventurous undertaking of all was the production of scale models of all known breeds of British cows and oxen, which effectively created a new category of art - agricultural sculpture".[38] As to his involvement with the legislature, he continues: "So convinced was Garrard that herein lay his passport to fame that he lobbied for, and with [Samuel] Whitbread's [1764-1815] help,[39]secured, a copyright bill for contemporary sculpture - which he believed would both protect his models from earlier plagiarists and inspire respect and gratitude from established sculptors".[40]

The first petition was laid before the House on 23 February 1797,[41] but "[t]he Session being far advanced, it was thought adviseable to defer the Prosecution of the Measure till the next Meeting of Parliament".[42] Between this time and the presentation of a petition in the following year,[43] Garrard wrote to both the Royal Academy and the Board of Agriculture seeking their support for the Bill. His purpose in involving the Board of Agriculture he explained as follows:

"The Board of Agriculture having patronized several attempts at delineating the Live Stock of different countries by Painting and Engraving, and it having occurred to the Author of this work, that a Picture (although it gives the most lively idea of colour, and general effect) rather exhibits a section or contour of the Animal, than its real image, as ideas of thickness cannot thus be adequately conveyed with those of length and height, he was therefore induced to make proposals for executing Models of the Improved Breeds of British Cattle, in which the exact proportion, in every point, should be accurately preserved. His plan was submitted to the Board of Agriculture, and had the honour of meeting with considerable encouragement, being referred by a Committee of that Board to the Duke of Bedford, and the Earl of Egremont."[44]

Having secured the Boards' patronage in the execution of his project concerning British cattle, he similarly sought their support in "procuring the patronage of an Act of Parliament".[45]

In writing to the Royal Academy, for all the discussion as to the national importance of the general improvement of the arts, Garrard made clear his personal financial interests in securing the Bill:

"Mr. Garrard feeling himself deeply interested from the probable Advantage that might result to his Family, if Copy-Right of his Studies could be secured; and being conscious that an Exclusive Right to their Labour might be equally desirable to many other Artists, has thought it his Duty to consult with some of the first Men in the Profession, upon the Propriety of petitioning Parliament for Leave to bring in a Bill for the Encouragement of Modelling by securing the Copy-Right." [46]

While the Council of the Academy answered that they were "very desirous to render every Assistance they can, to promote such useful and Undertaking", this stopped short of advancing any "Monies for the purposes stated in your Letter".[47] Nevertheless, when the second petition was submitted to the Commons on 21 February 1798,[48] after the matter was referred to committee for investigation, Benjamin West, then President of the Academy did appear to give evidence before them.[49] The committee, which included the Duke of Bedford (1765-1802), noted that the proposed legislation had the support of both the Royal Academy and the Board of Agriculture,[50] and recommended that the Bill proceed. On 21 June, four months after Garrard's second petition had been received before the House, the Models and Busts Act received the Royal Assent.[51]

6. Problems with the 1798 Act

The Act itself was clearly modelled on the earlier engravers' legislation (of 1735, 1766 and 1777).[52] Indeed, in Garrard's second petition to the Commons he specifically referred to the fact that:

"[T]he Art of Engraving has been manifestly advanced to its present State of Perfection by the protection afforded to it by several Acts ... and in Consequence of which Laws the Arts in general have received essential Benefit, and the Commerce of this Country has been very widely extended."[53]

The influence of the 1735 Act upon the drafting of the later legislation is more than evident. The preamble, for example, is lifted almost word for word from the earlier statute.[54] Similarly, the Act made it an offence to copy the protected work,[55] either in its entirety or by "adding to or diminishing from" the same, or to import or sell such copies.[56] Moreover, as was the case with the earlier legislation which provided that anyone purchasing engraved plates from their lawful proprietor could "print and reprint from the said plates" without liability,[57] the 1798 Act provided that no-one who should thereafter "purchase the Right" in any protected model would be liable for selling any "Cast or Copy from the same".[58] The legislation also drew upon the more recently enacted Calico Printers Copyright Act 1787,[59] in introducing a requirement of novelty (any "new Model, or Copy or Cast made from such new Model" was to be protected),[60] and in articulating a remedy that did not provide for delivery up and the imposition of a statutorily defined financial penalty,[61] but instead allowed for such damages as a trial jury should award (together with the costs of suit).[62]

The Act, however, was poorly executed.[63] Problems with the drafting were more than evident in Gahagan v. Cooper (1811),[64] the first case to be decided under the 1798 Act, and indeed the first of only two cases involving works of sculpture to be litigated throughout the nineteenth century.[65]Gahagan concerned a copy of a bust of Charles James Fox (1749-1806), M.P. for Westminster, and the Foreign Secretary in Grenville's (1759-1834) administration, executed by the plaintiff at the start of September 1806, just days before Fox died. The defendant was accused of selling an altered copy of the bust ("the pirated bust had drapery thrown over the breast, and the shoulders rounded off"[66]) contrary to the provisions of the Act. The wording of the provision prohibiting the making and selling of copies was a particularly convoluted and internally inconsistent affair, something which the counsel for the defendant was quick to point out. While the Act prohibited the making of copies with additions or alterations,[67] the ban on importing and selling copied work only extended to exact copies of the protected work, and, as it could not be proved that the defendant had manufactured the altered imitation of the bust, it was decided that he had committed no offence under the legislation simply selling the same.[68] Lord Ellenborough (1750-1818) commented that "[t]he statute seems to have been framed with a view to defeat its own object"; he continued, somewhat dryly, that "[t]hese artists must again apply to Parliament for protection; and they had better not model the new Act themselves as they seem to have done the former".[69]

Baker, M., "The Ivory Multiplied: Small-scale Sculpture and its Reproductions in the Eighteenth Century". In Sculpture and its Reproductions. Edited by Hughes, A., and Ranfft, E. (London: Reaktion, 1997), 61-78

Bruntjen, S.H.A., John Boydell, 1719-1804: A study of art patronage and publishing in Georgian London (New York: Garland Publishing, 1985)

Burke, J., English Art 1714-1800 (Oxford: Clarendon Press, 1976)

Chappell, F.P., and Shoard, J., A Handy-Book of the Law of Copyright (London: Sweet, 1863)

Deuchar, S., Sporting Art in Eighteenth Century England: a social and political history (New Haven, Connecticut and London: Yale University Press, 1988)

von Erffa, H., and Staley, A., The Paintings of Benjamin West (London: Yale University Press, 1986)

Garrard, G., A Description of the Different Varieties of Oxen, Common in the British Isles, Embellished with Engravings, Being an Accompaniment To a Set of Models of the Improved Breeds of Cattle, Executed by George Garrard, Upon an Exact Scale of Nature, Under the Patronage of the Board of Agriculture (London: Smeeton, 1800)

Hutchison, S.C., The History of the Royal Academy 1768-1968 (London: Chapman and Hall, 1968)

Ireland, J., A supplement to Hogarth illustrated; compiled from his original manuscripts, in the possession of John Ireland, author of the two volumes published by Messrs. Boydell, 3 vols (London: Boydell, 1791-98)

Montagna, D., "Benjamin West's The Death of General Wolfe: A Nationalist Narrative", American Art Journal, 13 (1981) 72-88

Passeggia, L., "The Marble Trade: The Lazzerini Workshop and the Arts, Crafts and Entrepreneurs of Cabarra in early Nineteenth Century". In The Lustrous Trade: material culture and the history of Sculpture in England and Italy, c.1700 - c.1860. Sicca. C.M., and Yarrington, A. (London: Leicester University Press, 2000) 156-173

Phillips, C.P., The Law of Copyright in Works of Literature and Art and in the Application of Designs (London: 1863)

Postle, M., "Naked Authority? Reproducing Antique Statuary in the English Academy, from Lely to Haydon". In Sculpture and its Reproductions. Edited by Hughes, A., and Ranfft, E. (London: Reaktion Books, 1997), 79-99

Rapp, D., Samuel Whitbread (1764-1815): a social and political study (New York & London: Garland, 1987)

[3] This was a reconstituted version of the first such academy which had been founded in 1711 under the guiding hand of Sir Godfrey Kneller, then Britain's foremost portrait painter. Following Kneller's death, he was replaced as Governor of the academy by James Thornhill, Hogarth's father-in-law. It was after Thornhill died in 1734 that Hogarth re-established the academy at St. Martin's Lane. See Sidney C. Hutchison, The History of the Royal Academy 1768-1968 (London: Chapman and Hall, 1968), 26-29. Of Hogarth's academy Hutchison writes that "[i]t served as the breeding ground for [the Royal Academy] and in it were developed the educational constituents of the later foundation"; ibid., 28-29. See also William Gaunt, The World of William Hogarth (London: Jonathan Cape, 1978), 32-37.

[4] For Hogarth's own account of the academy see John Ireland, A supplement to Hogarth illustrated; compiled from his original manuscripts, in the possession of John Ireland, author of the two volumes published by Messrs. Boydell, 3 vols. (London: Boydell, 1791-98), 1: 66-69.

[7] This was followed by the Accademia di S. Luce in Rome thirty years later, after which similar institutions were established in Bologna, Genoa, and Milan; see Hutchison, 24. The Academie Royale de Peinture et de Sculpture was founded in Paris in 1648; ibid.

[10] Indeed, as to the general state and reputation of engraving in Britain following the passage of the Engravers' Act, 1735, 8 Geo.II, c.13, Turner, in 1849, wrote as follows: "Some of the greatest English engravers were then living, Woollett, whose print of the death of Wolfe brought in 15,000l.; and Strange, whose Niobe was the first English work of high reputation, and produced a profit to the publisher of 2000l. The engraver, who retouched the plate repeatedly, received 100l. and an additional 20l. Its fame was European; and at this time English engravings held a high character abroad, and the exportation of prints is said to have amounted in some years previously to the war to 200,000l"; T. Turner, On Copyright in Design in Art and Manufactures (London: n.p., 1849), 14-15. On the reproductive print in the eighteenth century Burke writes: "[They] extended the fame of the collections of royalty and noblemen and of national treasures, and provided the first access of artists to the art of the Old Masters as well as a detailed reminder to those who had travelled and studied the originals. Their execution required insight into the originals as well as outstanding technical proficiency. ... It is to the credit of British art during this period that the engravers who set out to master the difficulties [of reproducing painterly values within the engraved work] pioneered striking advances in mezzotint which spread to the Continent, where la manière noire came to be regarded as a distinctively English excellence"; Joseph Burke, English Art 1714-1800 (Oxford: Clarendon Press, 1976), 177-78.

[18] See Margaret Whinney, Sculpture in Britain 1530 to 1830 (Middlesex: Penguin Books, 1964), 135. On the making of two-dimensional reproductions of classical statutary for educational purposes see Martin Postle, "Naked Authority? Reproducing Antique Statuary in the English Academy, from Lely to Haydon", in A. Hughes and E. Ranfft, eds., Sculpture and its Reproductions (London: Reaktion Books, 1997), 79-99.

[20] Passeggia writes that: "During the second half of the eighteenth century the sculptors at the Académie de France at Rome responded to the ever-increasing requests for copies after the antique by developing a system which consisted in fixing above the block and the model square frames which through the use of plumb lines enabled the exact reproduction of the object according to the appropriate scale"; Luisa Passeggia, "The Marble Trade: The Lazzerini Workshop and the Arts, Crafts and Entrepreneurs of Cabarra in early Nineteenth Century", in Sicca and Yarrington, 156-173 (165-66). On the manufacture of, and market for, reproductions in Europe in the eighteenth century see also Malcolm Baker, "The Ivory Multiplied: Small-scale Sculpture and its Reproductions in the Eighteenth Century", in A. Hughes and E. Ranfft, eds., Sculpture and its Reproductions (London: Reaktion, 1997), 61-78.

[21] Wendorf recounts the anecdote as follows: "[I]n 1786, Reynolds would write again to [the Duke of Rutland] and patron about [his Venus] once it had been exhibited at the Royal Academy: ‘In regard to the Venus, the Duke of Dorset is to have it, not for himself, but for a French marquis, whose name I have forgot; he is to give me 400 guineas for it. I have since done another with variations, which I think is better than the first; but I am not fond of shewing it till the other is disposed of.' Here ... Reynolds discloses how shrewdly he could capitalize on his own limitations. The first Venus is virtually forgotten; the painter scrupulously notes the handsome price it fetched, but cannot remember whose room it will grace. Practice, moreover, has produced a second, more attractive Venus that differs from its predecessor not only in its ‘variations' but in the fact that it is ‘better'. The calculating author of the second painting will not allow it to enter the marketplace until the transaction for the first is complete"; Richard Wendorf, Sir Joshua Reynolds, The Painter in Society (Cambridge, Massachusetts: Harvard University Press, 1996), 90-91.

[22] Alberts writes about the exhibition as follows: "The public stood in long lines to get into the gallery to see it ... It was like no other modern picture Englishmen had seen. It made the viewer feel that he was present at and a part of a great historic event of his time, that he was an accessory with others in a tragic but inspiring occasion"; R.C. Alberts, Benjamin West: A Biography (Boston: Houghton Mifflin, 1978), 109.

[23] Ibid; see also H. von Erffa and A. Staley, The Paintings of Benjamin West (London: Yale University Press, 1986), 62. For commentary on the different versions of West's painting of Wolfe, see D. Montagna, "Benjamin West's The Death of General Wolfe: A Nationalist Narrative", American Art Journal, 13 (1981) 72-88.

[31] About West in particular, von Erffa and Staley write that, after Wolfe: "Throughout the rest of the eighteenth century, reproductive prints after West's major paintings continued to appear regularly, giving his compositions an international circulation and allowing him to expand his income by appealing to a public far larger and more diffuse than they tiny fraction of it that could afford to buy large paintings. In expanding the market for works of art, the flourishing print industry encouraged and responded to popular taste, and so did painters such as West"; von Erffa and Staley, 62.

[32] When the British Institution paid the unprecedented figure of £3,150 for West's Christ Healing the Sick in 1811, they more than recouped their original investment, as well as a substantial engravers' fee, by the sale of engravings of the same; G.R. Reitlinger, The Economics of Taste, 3 vols. (London: Barrie & Rockliff, 1961-1970), 1: 70. For a discussion of the legal position of artists' "engraving rights" see: uk_1862.

[34] Some artists, such as J.M.W. Turner and John Martin, rather than work in collaboration with established engravers, took control of the engraving of their own works themselves; See for example: W.G. Rawlinson, The Engraved Work of J.M.W. Turner, 2 vols. (London: Macmillan and Co, 1908). Between 1826 and 1840 Martin, Reitlinger reports, claimed to have made in excess of £21,000 either from royalties or in direct sales of prints of his paintings; Reitlinger, 1: 98.

[35] G. Garrard, A Copy of the Documents, &c. respecting An Act of Parliament, Intitled, "An Act to encourage the Art of making New Models and Casts of Busts, &c." 38 Geo. III. 1798; Deposited In the Records of the Royal Academy. To which is added, A Copy of a Letter of Thanks, From the Royal Academy to Mr.Garrard, Who by the liberal assistance of his friends, obtained this Law for the Benefit of the Arts (London: Staunton, 1799).

[36] See: R. Asleson, "Garrard, George (1760-1826)", Oxford Dictionary of National Biography, (Oxford University Press, 2004), http://www.oxforddnb.com/view/article/10402 [accessed 5 May 2007]. About Garrard, Whinney writes as follows: "Garrard was an animal painter as well as a sculptor; he married the daughter of Sawrey Gilpin, one of the best known of English animal painters, and so comes within the circle of artists whose work was to excite Géricault during his visit to England in 1820-2. Garrard's best work was shown at the Academy earlier than this, for his remarkable relief of Duncan's maddened horses, used as an over-door at Southill, Bedfordshire, was exhibited in 1797. Possibly a plaster of it, or of the companion relief of bison fighting, might still have been available in London at the time of Géricault's visit, for it seems certain that Garrard did sell small plasters of his naturalistic animal figures, some of which are still at Southill"; Whinney, 173-74.

[41] Journal of the House of Commons (CJ), 52: 320. This petition read as follows: "That the Petitioners have, with great Industry, and at a considerable Expence, made divers new Models and Casts of Busts, Statues, Animals, and other Things, in hopes to have reaped the Benefit of such their own Labours; but to their great Disappointment, divers Persons have of late taken the Liberty of imitating, and making base, imperfect and mean Copies thereof, and of selling and disposing of the same, to the great Detriment of the Petitioners, and such other Artists as aforesaid, and to their great Discouragement in the Exercise of the said Arts. Your Petitioners, therefore, humbly pray that Leave may be given to bring in a Bill to secure to them their Rights, in such New Models and Casts as aforesaid, for such Time, and in such Manner as to this Honourable House shall appear reasonable and proper".

[44] G. Garrard, A Description of the Different Varieties of Oxen, Common in the British Isles, Embellished with Engravings, Being an Accompaniment To a Set of Models of the Improved Breeds of Cattle, Executed by George Garrard, Upon an Exact Scale of Nature, Under the Patronage of the Board of Agriculture (London: Smeeton, 1800), "Introduction".

[45] Ibid. Garrard notes as follows: "The general Improvement of the Arts has always been considered as of great National Importance, on Account of their Influence upon Manufactures and Commerce; and the Assistance to be derived by the Farmer, from this particular Branch, as it affords correct Models of the most approved Shapes in Cattle, is obvious: therefore, it was considered nowise improper to lay the matter before the Board of Agriculture, I accordingly applied to that Board, and Letters recommending the support of the Bill were in consequence sent from the President to the Duke of Bedford, and the Earl of Egremont"; Garrard, A Copy of the Documents, 3-4.

[48] CJ, 53: 279; this second petition differed from the first: "Setting forth, That the Art of Sculpture, which is confessedly the Foundation of every Thing elegant and ornamental in the Arts and Manufactures, has not hitherto experienced from the Legislature that Protection to which, as it appears to the Petitioners, it is so eminently entitled; and the ingenious Artists, who have applied themselves to the Study of Sculpture, have, to their great Mortification and Injury, found that their Works have been pirated, whereby the Fruits of their Labours have been lost to themselves and Families, and the Art itself has been degraded, and many have thereby discouraged from Attempts, to which their Genius may have prompted them, and others have been afraid to put forth the Works which they may have executed; and that the Art of Engraving has been manifestly advanced to its present State of Perfection by the protection afforded to it by several Acts ... and in Consequence of which Laws the Arts in general have received essential Benefit, and the Commerce of this Country has been very widely extended: And therefore praying, That Leave may be given to bring in a Bill to secure to their Authors the Copy Right of all New Models of Sculpture of the Human Figure and Animals, for a Time to be limited".

[49] Garrard considered West's testimony crucial in the securing of the Act in noting that West "attended the Committees of both Houses, and proved the Allegations contained in the Petition and the Preamble to the Bill"; Garrard, 1799, 4. The Journal of the House of Commons records West's testimony before the committee in the following way: "Mr John Pitt reported from the Committee ... that the Committee had examined the matter of the said Petition, and had directed him to report the same ... To prove the Allegations of the said Petition, Benjamin West, Esquire, being examined said, That the Art of Sculpture which is confessedly the Foundation of every Thing elegant and ornamental in the Arts and Manufactures, has not hitherto experienced from the Legislature that Protection to which, as it appears to the Petitioners, it is so eminently entitled; and the ingenious Artists, who have applied themselves to the Study of Sculpture, have, to their great Mortification and Injury, found that their Works have been pirated, whereby the Fruits of their Labours have been lost to themselves and Families, and the Art itself has been degraded, and many have thereby discouraged from Attempts, to which their Genius may have prompted them, and others have been afraid to put forth the Works which they may have executed. And the Witness further said, that the Art of Engraving has been manifestly advanced to its present State of Perfection by the protection afforded to it by several Acts ... and in Consequence of which Laws the Arts in general have received essential Benefit, and the Commerce of this Country has been very widely extended"; CJ, 53: 510-11. In fact, this simply replicates, almost word for word, the content of Garrard's petition of 21 February 1798; see CJ, 53: 279.

[54] The Preamble to the 1798 Act reads as follows: "Whereas divers Persons have, by their own Genius, Industry, Pains and Expence, improved and brought the Art of making new Models and Casts of Busts, and of Statues of Human Figures, and of Animals, to great Perfection, in Hopes to have reaped the Benefit of their Labours..."; the Preamble to the 1735 Act begins in a similar fashion: "Whereas Divers Persons have by their own Genius, Industry, Pains and Expence, invented and engraved, or worked in Mezzotino or Chiaro Oscuro, Sets of historical and other Prints, in hopes to have reaped the sole Benefit of their Labours".

[55] The legislation provided that "every Person who shall make or cause to be made any new Model, or Copy or Cast made from such new Model of any Bust, or any Part of the Human Figure, or any Statue of the Human Figure or the Head of any Animal or any Part of any Animal, or the Statue of any Animal; or shall make or cause to be made any new Model, Copy or Cast from such new Model, in Alto or Basso Relievo, or any Work in which the Representation of any Human Figure or Figures, or the Representation of any Animal or Animals shall be introduced, or shall make or cause to be made any new cast from Nature or any Part or Parts of the Human Figure, or of any Part or Parts of any Animal" would have the "sole Right and Property" in the same for the period of fourteen years from the time of first publishing the work; s.1.

[56] s.2; the Engravers' Act 1735 prevented the copying, printing, publishing and sale of any protected print "in the whole or in part, by varying, adding to, or diminishing from the main Design"; s.1.

[59] An Act for the Encouragement of the Arts of designing and printing Linens, Cottons, Callicoes, and Muslins, by vesting the Properties thereof in the Designers, Printers and Proprietors, for a limited time, 1787, 27 Geo.III, c.38.

[60] The 1787 legislation had set out that "every Person who shall invent, design and print, or cause to be invented, designed and printed, and become the Proprietor of any new and original Pattern or Patterns for printing Linens, Cottons, Callicoes, or Muslins shall have the sole Right and Liberty of printing and reprinting the same for the Term of Two Months, to commence from the day of first publishing the same"; s.1.

[65] The second was Caproni v. Alberti (1891) 65 LTR 785. As to the general absence of litigation concerning sculpture, Phillips suggested that it could be attributed to the fact that "works of sculpture are most frequently pirated by a class of persons against whom the existing laws afford an insufficient remedy. The instances of piracy are, it is believed, constant; but, according to a report prepared at the request of the Society of Arts, ‘sculptors have wisely submitted to the invasion of their rights rather than embark on litigation with men of straw'"; C.P. Phillips, The Law of Copyright in Works of Literature and Art and in the Application of Designs (London: 1863), 228.

[67] On this point Lord Ellenborough read the Act to mean that the manufacture of an exact copy was not an infringement under the legislation, whereas the manufacture of an altered copy was; see Gahagan, 114-15. Underdown commented upon the Act as follows: "It appears that it was no offence to sell a bust differing in the slightest degree from the original, and no offence to make even a fac-simile"; E.M. Underdown, The Law of Art Copyright (London: John Crockford, 1863), 50.

[68] Turner comments upon the case in the following manner: "In the very first case to which this act was applied it failed. The case was Gahagan's, for a piracy of a bust. In this the head was an exact copy, but some drapery was thrown round it. The pirated bust therefore would be a copy with an addition, the making of which was prohibited; but the making could not be proved. The selling prohibition as to the article drops the "addition and subtract," and the pirate had not sold a bare copy"; Turner, 17.

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